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Sanjay Gulati vs Harsh Lata on 26 April, 2018

Crl. Revision No. 783 of 2017 1

IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH

Crl. Revision No. 783 of 2017 (OM)
Date of decision: 26.4.2018

Sanjay Gulati
…Petitioner
Versus
Harsh Lata
…Respondent

CORAM:- HON’BLE MS. JUSTICE JAISHREE THAKUR

Present: Mr. Deepak Sonak, Advocate
for the petitioner.

Mr. B.D. Sharma, Advocate,
for the respondent.

JAISHREE THAKUR, J.

1. The instant revision has been filed seeking to challenge the

order dated 9.2.2017 passed by the learned Additional Sessions Judge,

Hisar, by which the order dated 7.9.2016 passed by the learned Judicial

Magistrate Ist Class, Hisar, directing the petitioner to pay `3000/- per month

to the respondent wife has been upheld.

2. In brief, facts as stated are that the respondent Harshlata filed a

petition under Section 12 of the Protection of Women from Domestic

Violence Act, 2005 (for short ‘the Domestic Violence Act’) claiming relief

of maintenance. It was alleged that the respondent-wife was given severe

beatings and was turned out of the matrimonial home for bringing

inadequate dowry. The matter was referred to the Panchayat and subsequent

thereto, the parties arrived at a compromise and the police recommended for

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cancellation report to be filed. The husband filed a petition for divorce

before the Court at Fatehabad, which was dismissed and the appeal against

the said judgment was also dismissed by this High Court. Since the act and

conduct of the petitioner-husband was such, the respondent-wife filed a

petition against the petitioner herein invoking provision of the Domestic

Violence Act claiming maintenance.

3. Upon notice, the petitioner appeared and alleged that the parties

had been residing separately since the year 2007 and, therefore, the instant

petition filed after lapse of more than six years i.e. in the year 2013, would

be barred by the period of limitation. It was further submitted that there is no

report of Protection Officer regarding offences as claimed. It was further

submitted that a false FIR No. 373 dated 2.8.2007 under Sections 498-A,

406/34 IPC was lodged against the petitioner herein, which stood cancelled

and, in fact, a petition was filed under Section 125 of the Code of Criminal

Procedure in which the respondent-wife has been awarded maintenance @ `

4,000/- per month and, therefore, the petition ought to be dismissed.

4. The learned Judicial Magistrate Ist Class, Hisar, by order dated

7.9.2016 allowed the petition under Section 12 of the Domestic Violence

Act and directed the petitioner to pay maintenance @ `3,000/- per month

from the date of filing the petition. Aggrieved against the said order, an

appeal was preferred under Section 29 of the Domestic Violence Act which

too was dismissed, by impugned order dated 9.2.2017, giving rise to the

present petition.

5. Learned counsel appearing on behalf of the petitioner contends

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that the petition under Section 12 of the Domestic Violence Act is not

maintainable since the parties had been residing separately since 2006 and

the said petition has been preferred after a lapse of more than six years.

Learned counsel for the petitioner argues that the respondent-wife has not

shared residence after the year 2007 when she had got registered FIR No.

373 dated 2.8.2007 under Sections 498-A, 406/34 IPC and, therefore, the

question of any domestic violence would not arise, while also arguing that

the respondent-wife is not entitled to claim maintenance both under Section

125 of the Code of Criminal Procedure as well as under the provisions of the

Domestic Violence Act. It is also submitted that once maintenance has been

allowed under Section 125 of the Code of Criminal Procedure,

enhancement, if any, could be claimed on instituting an application under

Section 127 of the Code of Criminal Procedure and that too if there is

change in circumstances, while also arguing that allegations regarding

cruelty have been negated in the FIR that was lodged under Sections 406

and 498-A/34 IPC. In this regard, reliance has been placed on a judgment of

the Madras High Court B. Prakash Vs. Deepa and another 2016 (1) RCR

(Criminal) 524.

6. Per contra, Mr. B.D. Sharma learned advocate appearing for the

respondent, submits that the petition under the provisions of the Domestic

Violence Act is maintainable as the respondent-wife is an “aggrieved

person” and is entitled to claim maintenance from her husband-petitioner

herein, while also submitting that the maintenance is being sought under the

Domestic Violence Act on account of subsequent development i.e. on

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medical grounds . It is submitted that respondent has been diagnosed with

cancer and she requires constant medical care. The amount, as assessed,

under Section 125 of the Code of Criminal Procedure is wholly inadequate,

while also submitting that there is no delay in filing the petition.

7. I have heard learned counsel for the parties and with their able

assistance have perused the pleadings and the case law, as cited. Two fold

question arises for determination in this case, firstly, whether the petition

filed by the respondent-wife under the provision of the Domestic Violence

Act is barred by limitation; secondly whether the respondent-wife can claim

maintenance under the Domestic Violence Act, in view of the fact that she is

already receiving maintenance under Section 125 of the Code of Criminal

Procedure or a petition for enhancement has to be instituted under section

127 of the Code of Criminal Procedure?

8. There is no dispute about the fact that the marriage was

solemnized between the petitioner and the respondent herein which is still in

subsistence as the divorce petition filed by the petitioner stands dismissed

utpo this Court. It is also not in dispute that the parties are residing

separately and the petition under the Domestic Violence Act was filed after

more than six years of the respondent having been turned out of the

matrimonial home. Could a petition filed under the provisions of the

Domestic Violence Act be dismissed only on the ground being barred by

law of limitation? This question is no longer res-integra and well settled.

This Court recently in Criminal Revision No. 3084 of 2016 titled Vikas

and others Vs. Smt. Usha Rani and another following the judgments of

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the Supreme Court in Krishna Bhatacharjee Versus Sarathi Choudhury

and another 2016 (2) SCC 705 and Shalini Versus Kishor and others

2015 (11) SCC 718, held as under:-

“An aggrieved person is permitted to present an application to

the Magistrate seeking one or more reliefs under this Act and

the Magistrate shall take into consideration any domestic

incident report received by him from the Protection Officer

also. Section 12 of the Domestic Violence Act is an enabling

provision to file an application, whereas Sections 18 to 22 of

the Domestic Violence Act provide for rights of the aggrieved

person to seek different reliefs like protection, residence,

monetary relief, custody of minor and compensation. No

limitation has been prescribed for seeking any such relief.

Penal provisions under Section 31 of the Domestic Violence Act

would get attracted on a breach of a protection order . It is

only in a situation when there is a breach of any protection

order on an application under Section 12 or on any of the

reliefs under Sections 18 to 22 of the Domestic Violence Act,

then and then only, an application under Section 31 of the

Domestic Violence Act is to be filed within one year from the

date of such breach and not thereafter. Therefore, the court is

of the opinion that there is no limitation prescribed to institute

a claim seeking relief under Sections 17 to 22 of the Domestic

Violence Act.”

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Therefore, the question is answered against the petitioner herein holding that

any act of domestic violence is a continuing offence and would not be

barred by the law of limitation.

9. Being the lawfully married wife of Sanjay Gulati, the petitioner

in the instant petition, the respondent wife is entitled to seek maintenance

under Section 125 of the Code of Criminal Procedure. Similar provision has

been made under the provisions of the Domestic Violence Act if it can be

substantiated that there is ‘economic abuse’. It is trite to say that a husband is

duty bound to maintain his wife. The other questions that arise for

consideration is whether maintenance can be claimed by the respondent-

wife under the DV Act, in view of the fact that she is already receiving

maintenance under Section 125 of the Code of Criminal Procedure or a

petition for enhancement should be preferred under Section 127 of the Code

of Criminal Procedure ?

10. In this regard, learned counsel of the petitioner relies on B.

Parkash’s case (Supra), wherein the Madras High Court held as under:-

“18. If the wife wants to modify an order made under Section
125 of the Code, seeking enhancement of the maintenance
amount, the only option available for her is to file a petition
under Section 127 of the Code before the same Magistrate, who
passed the order. In other words, the order made under Section
125 of the Code can be modified or varied only by the same
Magistrate, who passed the earlier order. An order made under
Section 125 of the Code for maintenance by one Magistrate
cannot be varied or modified by a Magistrate acting under
Section 20 of the Act. Therefore, it should be noted that a
monetary relief granted towards maintenance under Section 20

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of the Act may be not in modification of the previous order for
maintenance passed under Section 125 of the Code, but it may
be in addition to the said order for maintenance passed under
Section 125 of the Code. If an order has already been made
under Section 125 of the Code for maintenance, there can be no
doubt that the wife had proved either neglect or refusal on the
part of the husband. If the wife wants an order under Section
20 of the Act, in addition to the order under Section 125 of the
Code, she has to prove fresh acts of the husband constituting
the domestic violence subsequent to the passing of the earlier
order under Section 125 of the Code. She cannot rely on the
acts of the husband constituting domestic violence, which
happened prior to the passing of the order under Section 125 of
the Code. For getting an order under Section 20 of the Act, in
addition to the earlier order under Section 125 of the Code, the
wife should plead and prove that subsequent to the said order
made under Section 125 of the Code, the husband had caused
domestic violence and on account of the same, she had suffered
loss and thus, she is entitled for additional amount as
maintenance. Thus, it is manifestly clear that a previous order
made under Section 125 of the Code is not a bar for an
aggrieved wife to approach a Magistrate under Section 20 of
the Act, for monetary relief as an additional relief of
maintenance, provided subsequent to the passing of the earlier
order under Section 125 of the Code, the husband has
committed domestic violence resulting loss to the wife.”

11. A bare reading of the provisions of Domestic Violence Act

would reveal that an ‘aggrieved person’ who has been subjected to

‘domestic violence’ is entitled to claim a right to residence in a shared

household, the right to maintenance, the right to access to joint property.

The term ‘domestic violence’ as defined in Section 3 of the Domestic

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Violence Act is not limited to, physical abuse or the limited scope of cruelty

under Section 498-A IPC, but has been expanded to also include sexual

abuse, verbal and emotional abuse as well as economic abuse. In fact, the

Domestic Violence Act was enacted in the year 2005 to protect women from

being victims of domestic violence and the definition of the term ‘domestic

violence’ is expansive.

Section 3 of the DV Act is as under :

“3.Definition of domestic violence.–For the purposes of this
Act, any act, omission or commission or conduct of the
respondent shall constitute domestic violence in case it–

(a) harms or injures or endangers the health, safety, life,
limb or well-being, whether mental or physical, of the
aggrieved person or tends to do so and includes causing
physical abuse, sexual abuse, verbal and emotional
abuse and economic abuse; or

(b) harasses, harms, injures or endangers the aggrieved
person with a view to coerce her or any other person
related to her to meet any unlawful demand for any
dowry or other property or valuable security; or

(c) has the effect of threatening the aggrieved person or any
person related to her by any conduct mentioned in clause

(a) or clause (b); or

(d) otherwise injures or causes harm, whether physical or
mental, to the aggrieved person. Explanation I.–For the
purposes of this section,–

(i) “physical abuse” means any act or conduct which is of
such a nature as to cause bodily pain, harm, or danger to
life, limb, or health or impair the health or development
of the aggrieved person and includes assault, criminal
intimidation and criminal force;

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(ii) “sexual abuse” includes any conduct of a sexual nature
that abuses, humiliates, degrades or otherwise violates
the dignity of woman;

(iii) “verbal and emotional abuse” includes–

(a) insults, ridicule, humiliation, name calling and insults or
ridicule specially with regard to not having a child or a
male child; and

(b) repeated threats to cause physical pain to any person in
whom the aggrieved person is interested.

(iv) “economic abuse” includes–

(a) deprivation of all or any economic or financial resources
to which the aggrieved person is entitled under any law
or custom whether payable under an order of a court or
otherwise or which the aggrieved person requires out of
necessity including, but not limited to, household
necessities for the aggrieved person and her children, if
any, stridhan, property, jointly or separately owned by
the aggrieved person, payment of rental related to the
shared household and maintenance;

(b) disposal of household effects, any alienation of assets
whether movable or immovable, valuables, shares,
securities, bonds and the like or other property in which
the aggrieved person has an interest or is entitled to use
by virtue of the domestic relationship or which may be
reasonably required by the aggrieved person or her
children or her stridhan or any other property jointly or
separately held by the aggrieved person; and

(c) prohibition or restriction to continued access to
resources or facilities which the aggrieved person is
entitled to use or enjoy by virtue of the domestic
relationship including access to the shared household.
Explanation II.–For the purpose of determining whether
any act, omission, commission or conduct of the

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respondent constitutes “domestic violence” under this
section, the overall facts and circumstances of the case
shall be taken into consideration”

12. The maintenance to which an ‘aggrieved person’ would be

entitled under the Domestic Violence Act has been specified under Section

20, which reads as under:

“20 Monetary reliefs.–(1) While disposing of an application

under sub-section (1) of section 12, the Magistrate may direct

the respondent to pay monetary relief to meet the expenses

incurred and losses suffered by the aggrieved person and any

child of the aggrieved person as a result of the domestic

violence and such relief may include but is not limited to–

(a) the loss of earnings;

(b) the medical expenses;

(c) the loss caused due to the destruction, damage or removal

of any property from the control of the aggrieved person;

and

(d) the maintenance for the aggrieved person as well as her

children, if any, including an order under or in addition to

an order of maintenance under section 125 of the Code of

Criminal Procedure, 1973 (2 of 1974) or any other law

for the time being in force.

(2) The monetary relief granted under this section shall be

adequate, fair and reasonable and consistent with the

standard of living to which the aggrieved person is

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accustomed.

(3) The Magistrate shall have the power to order an

appropriate lump sum payment or monthly payments of

maintenance, as the nature and circumstances of the case

may require.

(4) The Magistrate shall send a copy of the order for

monetary relief made under sub-section (1) to the parties

to the application and to the in-charge of the police

station within the local limits of whose jurisdiction the

respondent resides.

(5) The respondent shall pay the monetary relief granted to

the aggrieved person within the period specified in the

order under sub-section (1).

(6) Upon the failure on the part of the respondent to make

payment in terms of the order under sub-section (1), the

Magistrate may direct the employer or a debtor of the

respondent, to directly pay to the aggrieved person or to

deposit with the court a portion of the wages or salaries

or debt due to or accrued to the credit of the respondent,

which amount may be adjusted towards the monetary

relief payable by the respondent.”

On careful examination of Section 20 of the Domestic Violence Act which

allows for monetary relief, section 20 (d) provides for maintenance to the

aggrieved person as well as her children, if any, which would be in addition

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to an order of maintenance under Section 125 of the Code of Criminal

Procedure, 1973 (2 of 1974) or any other law for the time being in force.

Section 26 further stipulates that any relief available under sections 18, 19,

20, 21 and 22 of the Act may also be sought in any legal proceedings before

a civil court family court or a criminal court and such relief may be sought

in addition to thereto. Whereas section 36 clearly stipulates “Act not in

derogation of any other law.–The provisions of this Act shall be in addition

to, and not in derogation of the provisions of any other law, for the time

being in force.” A co-joint reading of the aforesaid Sections 20, 26 and 36

would clearly establish that the provisions of the Domestic Violence Act are

supplementary to provisions of other law and, therefore, this Court,

respectfully disagrees with the dictum in B Prakash versus Deepa, (supra)

the case as cited by the counsel for the petitioner.

13. Therefore, the upshot of the discussion would be that the

respondent wife would be entitled to claim maintenance under Section 20 of

the Domestic Violence Act, even though she is already getting maintenance

under Section 125 of the Code of Criminal Procedure. There is no

requirement for the aggrieved person, the respondent herein, to file an

application under Section 127 of the Code of Criminal Procedure seeking

enhancement of maintenance and to prove that they are changed

circumstances. An aggrieved person can institute a petition under the

Domestic Violence Act, in addition to proceedings under Section 125 of the

Code of Criminal Procedure. However, the courts, while deciding quantum

of maintenance have to take into account the maintenance being awarded to

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the aggrieved person under other provisions of law, be it under Section 125

Code of Criminal Procedure, Section 24 of the Hindu Marriage Act or any

other provisions applicable thereto, while awarding maintenance.

14. The petitioner herein is working and drawing a salary of

`31,539/- per month as per the salary statement of March 2016 with the net

pay of `29,069/- per month after permissible deductions. The respondent

herein has been awarded `4,000 per month as maintenance allowance in

proceedings under Section 125 Code of Criminal Procedure and a sum of `

3,000/- under the impugned order making it a total of `7,000/- per month,

which is not excessive given that medical treatment is highly expensive. The

respondent wife herein is stated to be suffering from an incurable disease

and in dire need of medical treatment.

15. Therefore, finding no infirmity in the impugned orders so

passed, the present revision is dismissed.

26.4.2018 (JAISHREE THAKUR)
prem JUDGE

Whether speaking/reasoned Yes
Whether reportable No

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